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Wachstein v. Slocum

Decided: May 26, 1993.

H. IAN WACHSTEIN, PLAINTIFF-APPELLANT-CROSS-RESPONDENT,
v.
ALFRED A. SLOCUM, IN HIS CAPACITY AS PUBLIC ADVOCATE AND INDIVIDUALLY AND THE DEPARTMENT OF THE PUBLIC ADVOCATE, DEFENDANTS-RESPONDENTS-CROSS-APPELLANTS



On appeal from Superior Court of New Jersey, Law Division, Mercer County.

Antell, Dreier and Skillman. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

In August 1985, defendant Alfred A. Slocum was nominated by Governor Thomas Kean and confirmed by the New Jersey Senate as the New Jersey Public Advocate, a position in the Governor's cabinet. N.J.S.A. 52:27E-2, 3. Approximately a year later, in August 1986, Slocum also was appointed Public Defender -- a subcabinet position within the Department of the Public Advocate -- which is the head of the office with responsibility for providing legal representation to indigent criminal defendants. N.J.S.A. 2A:158A-3 to 5. Slocum told the Governor that he planned to make "dramatic managerial personnel changes" in the Office of Public Defender, and the Governor agreed to such changes.

This case involves the managerial changes that Slocum made in the position of Regional Public Defender, which supervises a regional office of the Public Defender. There were nineteen of these positions when Slocum took office, all of which were occupied by white males. Seven of the Regional Public Defenders

were "prime timers," which meant that they were allowed to engage in the private practice of law outside of normal working hours. Slocum determined that all Public Defenders should serve full-time and issued a directive to that effect shortly after taking office. As a result, five of the nineteen Regional Public Defenders resigned. Slocum also determined that there should be a Regional Public Defender in each county and thus increased the number of these positions from nineteen to twenty-one.

Slocum conducted evaluations of the fourteen remaining incumbents in Regional Public Defender positions. These evaluations consisted of visiting each of the regional offices and obtaining the views of the Chief Investigator of the Public Defender's office and other members of Slocum's staff in Trenton who had regular contact with the regional offices. Slocum also had a Discussion with former Public Advocate Stanley Van Ness.

After completing these evaluations, Slocum determined to remove three of the remaining Regional Public Defenders and to assign them to non-supervisory positions. In addition, Slocum demoted two Assistant Public Defenders and transferred the Regional Public Defender in Hudson County to the same position in Essex County. One of the Regional Public Defenders whom Slocum demoted was plaintiff, H. Ian Wachstein, who had been in charge of the Camden office of the Public Defender since 1972. Upon his removal from the position of Regional Public Defender, plaintiff was assigned to the Office of Law Guardian in the Camden office of the Public Defender. Law Guardians are assigned to represent minors in cases of alleged child abuse or neglect. See N.J.S.A. 9:6-8.21(d).

According to Slocum, the reason he removed plaintiff from his managerial position was that he was too "laid back." Slocum said he received information that plaintiff frequently did not arrive at the Public Defender's office until late morning and that he also left early. Slocum also said he was informed that plaintiff and other members of his staff came to work in blue jeans and polo shirts.

In addition, Mr. Van Ness told him that if he were still the Public Defender, he would remove plaintiff.

The resignation of five "prime time" Regional Public Defenders, the demotion of three others including plaintiff and the creation of two new positions, resulted in a total of ten vacancies in the position of Regional Public Defender. Slocum filled four of these positions with white males, four with white females and two with black males. One of the positions filled by a black male was in Camden County. After all of these management changes were completed, the Regional Public Defender positions were filled by fifteen white males, four white females and two black males.

In April 1987, plaintiff filed this lawsuit alleging that Slocum and the Department of Public Advocate had discriminated on the basis of race in removing him from the position of Regional Public Defender. Plaintiff also alleged that defendants had discriminated against him on the basis of age (he was 46 at the time) and religion (he is Jewish). Plaintiff further alleged that his salary had been decreased from $56,351.55 to $54,339.37 subsequent to his demotion in retaliation for his wife sending a letter to the Governor complaining about Slocum's action. Plaintiff's claims were based on the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42, and Title VII of the Federal Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e to 2000e-17.

During the pendency of this suit, Slocum directed that plaintiff be transferred to a position outside of Camden County. As a result, plaintiff was assigned to the Atlantic County office of the Public Defender. Plaintiff subsequently filed an amended complaint alleging that Slocum had him transferred in retaliation for his pursuit of this litigation.

The case was tried over four days. Plaintiff's claim that his removal from the position of Regional Public Defender was racially motivated was based on evidence that (1) plaintiff had always received satisfactory performance evaluations, (2) Slocum made a statement during a meeting with the Regional Public Defenders that he considered it undesirable for all nineteen persons in this

position to be white males and that he planned to change this racial composition during his tenure, (3) in response to a letter from the President of the Monmouth County Bar Association complaining about Slocum's appointment of a female attorney from outside the county to be the Regional Public Defender in Monmouth County, Slocum had written a letter which stated that there was "a dirth [ sic ] of female, black and minority" Deputy Public Defenders and that "I have taken upon myself as a primary responsibility the duty to affirmatively compensate for the dirth [ sic ] of female employees serving in this capacity" and (4) the person who took plaintiff's place as Regional Public Defender in the Camden office was black.

At the close of plaintiff's case, the trial court granted defendants' motion to dismiss plaintiff's retaliation claim based on the decrease in his salary after his wife sent a letter to the Governor complaining about his demotion. However, the court denied defendants' motion to dismiss plaintiff's other claims. As to plaintiff's race discrimination claim, the court stated:

Clearly, there is direct evidence here that the Defendant had a goal to increase minority representation, and that the audience to whom he addressed his first statement was an all white male audience, and the Jury can find from that that there was discrimination . . . . It was stated that there would be a replacement of white men with either women or other men of minority groups. That is sufficient to satisfy that prong of the prescription of this claim.

The jury returned a verdict in plaintiff's favor on his claims that his removal from the position of Regional Public Defender was racially discriminatory and that his transfer from Camden County to Atlantic County was ordered in retaliation for his pursuit of this lawsuit. The jury rejected plaintiff's claims of discrimination on the basis of age and religion. The jury awarded plaintiff $80,000 in compensatory damages and $16 in punitive damages.

After the return of the jury verdict, plaintiff filed a motion for judgment n.o.v. with regard to damages or, in the alternative, a new trial on damages. In addition, plaintiff argued that the trial court had erred in dismissing his retaliation claim based on the reduction of his salary subsequent to his wife's letter to the

Governor. Plaintiff requested the court to "add a reasonable amount of punitive damages" or, in the alternative, grant a new trial as to this claim. Defendants filed a motion for judgment n.o.v. or, in the alternative, a new trial as to liability. The trial court denied both plaintiff's and defendants' post-trial motions in their entirety.

Plaintiff appeals from the trial court's denial of his motion for a new trial as to damages and from the dismissal of his retaliation claim based on the decrease in his salary after his wife's letter to the Governor, and defendants cross-appeal from the court's denial of their motion for a judgment n.o.v.

We conclude that the evidence presented at trial was insufficient to support a jury finding that defendants discriminated on the basis of race in removing plaintiff from the position of Regional Public Defender. We also conclude that the trial court correctly dismissed plaintiff's claim that his salary was reduced in retaliation for his wife's letter to the Governor. However, plaintiff presented sufficient evidence to support the jury's finding that he was transferred out of the Camden County office of the Public Defender in retaliation for his pursuit of this lawsuit. Since the jury's damage award was based in part on its finding that plaintiff's removal from the position of Regional Public Defender was racially discriminatory, the judgment is reversed and the case is remanded for a new trial limited to the issue of damages resulting from plaintiff's transfer from Camden to Atlantic County.

I

This is a reverse discrimination case; that is, it involves a claim by a white male that he was discriminated against on account of his race. In Erickson v. Marsh & McLennan Co., Inc., 117 N.J. 539, 569 A.2d 793 (1990), the Court held that such a claim should be decided under a different set of rules than those applicable to discrimination claims by a member of a minority group. The Court noted that ". . . when a complainant is a

member of the majority and not representative of persons usually discriminated against in the work place, discrimination directed against that person is 'unusual.'" Id. at 552, 569 A.2d 793. Thus, "[i]n reverse discrimination cases, the rationale supporting the rebuttable presumption of discrimination embodied in the prima facie elements does not 0 apply." Id. at 551, 569 A.2d 793.

Since the trial court concluded that plaintiff established a prima facie case and required defendants to present their proofs, we proceed directly to the question whether on the entire record a rational trier of fact could find that defendants' removal of plaintiff was racially motivated. See United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S. Ct. 1478, 1482, 75 L. Ed. 2d 403, 410 (1983) ("Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.").

The threshold question on this appeal is whether defendants' removal of plaintiff from the position of Regional Public Defender and the appointment of a black person to that position should be viewed in isolation from defendants' other management decisions made at or about the same time. Slocum gave undisputed testimony that he decided even before accepting the position of Public Defender that significant changes should be made 1 in the management of the office because he perceived it to be "stagnant" and to need a "breath" of "new life." It also is undisputed that to that end Slocum eliminated the "prima time" Public Defender positions and undertook an evaluation of all persons occupying the management positions of Assistant Public Defender and Regional Public Defender. The record leaves no doubt that plaintiff's removal from his position resulted from this management reorganization process.

Viewed in this broader context, there is no basis in the record for a finding that plaintiff's removal from his management position was racially motivated. Initially, we note the obvious point that since all the ...


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